Delhi High Court: An appeal was filed under Section 19 of the Family Courts Act, 1984 by appellant-mother, against the judgment dated 22-09-2022 of the Family Court, South, Saket Courts, New Delhi (‘the Family Court’) wherein, both parents were declared as joint guardians of the minor child and visitation rights were granted to respondent-father, while the custody of the minor was granted to appellant till the age of eighteen years. he Division Bench of Suresh Kumar Kait and Neena Bansal Krishna*, JJ. upheld the decision of the Family Court and modified the visitation rights granted to respondent. The Court directed appellant to bring the child to the children’s room of the Family Court on the first and third Saturday of every month. The Court held that respondent should be allowed to talk to the child on mobile phone at least once a week and further held that the order would remain effective till the child attains majority.
Background:
The parties got married on 11-05-2006 and a son was born on 02-05-2007. Later, matrimonial disputes arose between the parties, and they got separated on 22-02-2009 and he custody of the child remained with appellant.
Respondent had filed a guardianship petition under Section 7 and 25 of the Guardians and Wards Act, 1890 (‘the Act’) seeking declaration to be appointed as guardian of the minor child and for his permanent custody, being the father and natural guardian on the premise that appellant was not taking proper care of the child and was not fit to safeguard the interest of the minor child. It was alleged that appellant was a lady of short temperament and psychologically imbalanced. Respondent claimed that he had the financial capacity to take care of the needs and health of the minor child.
Appellant submitted that respondent was not well behaved, cultured, educated and was unable to provide good education to child. It was further claimed that respondent was a government employee, and his mother was very aged, thus he was incapable of taking care of the minor and the family members of respondent behaved in an indecent manner. Appellant claimed that she lived in a decent and cultured atmosphere where all the needs of the child could be fulfilled, thus respondent was not entitled to be declared as guardian or was to be given custody of the minor.
The Family Court after considering the minor’s statement, who wanted to continue to live with his mother, declared both appellant and respondent as joint guardians. Thus, the present appeal was filed by appellant challenging the visitation rights granted to respondent. Appellant alleged that the Family Court had failed to appreciate that the child was not safe in respondent’s custody of the father. Appellant submitted that he Family Court had not appreciated the incidence which took place on 15-08-2016 wherein, respondent along with the child, escaped locking the counsellor and threw chili powder in his eyes, which further led to registration of FIR against respondent and his family members. Consequent to the complaint, the visitation order was recalled by the Family Court and directedpolice to inform immigration office to prevent respondent along with the child to leave the country. The child was traced by the police after a week and was handed over to appellant. It was further submitted that respondent had failed to pay the maintenance for the last three years. Thus, it was claimed that the judgment granting visitation right was liable to be set aside.
Analysis, Law, and Decision
The Court took note of the fact that the child was in exclusive custody of appellant since the age of two years and respondent had been regularly availing the visitation rights and observed that he was unable to create any bond or develop any love and affection with the child and all the visitations had been forced with the intervention of the counsellor. The Court opined that the inability of respondent to win love and affection of the child was evident from the incident of 15-08-2016 wherein, respondent forcibly took away the child. This fact reflected the affection of the desperate father who somehow wanted to be with his son. The Court further opined that the taking away of the child forcibly could not be justified in any manner.
The Court noted the statement of the child given in the Family Court, wherein he had expressed his disinclination to be in the custody of respondent. The Court further opined that the intelligent preference of the child who was on verge of adulthood, which was a significant factor in accordance with Section 17(2) of the Act could not be ignored. The Court further opined that respondent might have better financial standing, but he had failed to prove that appellant had any financial constraint and her financial status had hindered proper upbringing of the child and meeting his requirements.
The Court relied on Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673 and Smriti Madan Kansagra v. Perry Kansagra, 2020 SCC OnLine Del 1414 and opined that the financial status of either party was not the sole determining factor for consideration of the issue of custody. It was further opined that if the mother was less capable financially, she would not be considered less competent to ensure the welfare of the child and father would still be under an obligation to ensure the financial well-being of the child.
The Court took note of the fact that respondent had failed to provide maintenance for last three years and for that execution petition was pending and further opined that respondent had exhibited a reluctance to discharge his financial obligations and appellant was managing all the affairs of the child and also there was no evidence that the financial needs of the child had been suffered in any manner.
The Court opined that Family Court had rightly concluded from the circumstances that the custody of the child should remain with appellant and some interaction of respondent with child was imperative for his interest and welfare. The Family Court also granted visitation rights to the father wherein, overnight stay from 12:00 noon of every first Saturday to 5:00 p.m. of every first Sunday.
The Court after considering all the circumstances and keeping in mind the physical and mental well-being of the child, the profound alienation of the child for the last about fourteen years and the reservation expressed by him in meeting the father, held that it would not be in the best interest of the child if he was compelled to stay overnight with respondent.
The Court thus modified the overnight custody and visitation rights granted to respondent. Further, the Court directed appellant to bring the child to the children’s room of the Family Court on the first and third Saturday of every month. The Court held that respondent should be allowed to talk to the child on mobile phone at least once a week and further held that the order would remain effective till the child attains majority.
[X v. Y, 2024 SCC OnLine Del 386, decided on 12-01-2024]
*Judgment Authored by: Justice Neena Bansal Krishna
Advocates who appeared in this case :
For the Appellant: Abhishek Kumar and Shivangi Singh, Advocates
For the Respondent: Iashwar Singh, Advocate
